Philip

Defendant appeals from the judgment, and from an order, refusing a new trial.

The complaint was demurred to, and the demurrer is. insisted upon here.

Plaintiff sues, as assignee of Fruhling Bros., and avers in his complaint that Fruhling Bros, contracted with Durkee to manufacture out of materials to be furnished by them, and to erect upon foundations to be prepared and designated by Durkee, certain iron gates and lamps,, for which Durkee agreed to pay Fruhling Bros, four hundred and thirty dollars. Also that Fruhling Bros, did construct and manufacture said gates and lamps, and the work of manufacture was completed about October 1,1891, “and they have ever since been able, ready,, and willing to erect the same in accordance with said contract.”

Further, the gates are specially adapted to the places. *302 for which they were made, and cannot be sold elsewhere without “ enormous loss, amounting to almost the entire contract price.” And that at divers times before the twenty-ninth day of April, 1892, Fruhling Bros, requested said Durkee to accept said gates and lamps, and to permit said Fruhling Bros, to erect them upon said premises; and to pay them therefor the sum of four…